from the say-what-now? dept

We've been doing a series of posts about the Copyright Office's hearings on copyright for pre-1972 recordings, where we already noted with some amusement how the RIAA is suddenly afraid of federal copyright law, preferring the ridiculously more draconian state copyright laws that avoid both the public domain and termination rights. On top of that, we've pointed out that the RIAA's representative flat out claimed that there's no value in the public domain.

From Copycense's tweets, there was one other attendee who seemed to be even more extreme: Ivan Hoffman. Frankly, I'd never heard of the guy before, but you can visit his masterful website here, which looks like it was designed in the early 1990s and never updated. However, I must warn you that in the mind of Ivan Hoffman, you may be violating his copyrights just visiting the site. That's because, at the bottom of the website, it states:

A couple things on this. First, the statement borders on copyfraud (some might say it goes beyond the borders), in that copyright does not allow the rights he has claimed. You absolutely can copy portions of his website if you're using them (as I am here) in a manner consistent with fair use, or if the specific content copied is not actually subject to copyright (and one can make an argument as to whether or not the copyright statement above, itself, is actually subject to copyright). But, even more to the point, if you simply visit his website, you have "copied," "duplicated" and "otherwise used" his website without the express written permission. I'm sure someone could argue the retransmission and reposting too. After all, when you click on the link above (I hope that's not retransmitting or "otherwise using!") you are instructing your computer to make a local copy on your hard drive... all without his express written permission.

So, anyway, that gives you a sense of who we're dealing with here.

What did Hoffman have to say? Well, there were two separate points that seemed worth covering, which I've embedded below via Copycense's tweets, and assuming that Copycense's reporting is accurate (and I have no reason to believe otherwise), it makes you wonder why the Copyright Office would have someone like him speak at their hearings. Specifically, he appears to claim that there should be no public domain, that copyright should last forever, and the very idea of the public domain is anti-free market. The specific statements in Copycense's tweets:

Hoffman: We don't take houses or cars back, but we take back copyrights. Why?

Hoffman: All of this is contrary to free market capitalism

This is, of course, hogwash that anyone who actually understands either the history and intention of copyrights or basic economics would recognize makes no sense. On the reason for the public domain, there's a rather excellent book on the subject that Hoffman might want to read. But the shorthand reason should be clear to anyone who understands copyright: it was to "promote the progress of science," by which the purpose is to benefit the public by giving them access to more content. Arguing contrary to that is simply twisting copyright law away from its core purpose. Furthermore, the basic ingredients of culture and content are earlier works. If we locked up everything, we'd have a lot less content and culture, entirely contrary to the Constitutional reasons behind copyright law. That a copyright lawyer would argue otherwise, to the Copyright Office, no less, is stunning.

And don't get me started on the ridiculous suggestion that putting works into the public domain is "contrary to free market capitalism." Which sounds more like free market capitalism: a world in which there is no government monopolies and interference for people to create and build... or one in which there's a central authority granting monopolies and changing those terms at will?

I asked Copycense if he could clarify what Hoffman was saying, and if (maybe? please?) these statements were sarcastic. Copycense says he's positive they were not sarcastic, and thinks Hoffman just meant that changing the copyright terms on anyone violates the Constitution. In fact, in support of that position, Hoffman also provided this lovely nugget, apparently:

Hoffman: "I have a problem in abrogating contract rights that have been in place for 30, 40, 50 years"

He, of course, is talking about the idea of moving pre-1972 works away from their current status and over to existing federal copyright law. But... if he's so against abrogating contract rights, then, um, shouldn't he be hopping mad about all of the retroactive copyright extension out there? Shouldn't he note that the composition copyrights on all of those songs should be in the public domain? After all, the contract offered to the musicians, at the time those songs were written, was that they would be getting exclusivity on the work for 28 years, followed by another 28 years if they reregistered. In exchange for granting them this monopoly, the public would get the work at the end of that period of time. And yet... with the 1976 Copyright Act, the government totally "abrogated" the contractual rights of the public, and unilaterally extended the copyright. It's really quite incredible that one can claim, with a straight face, that lengthy copyright on old works through extension is fine, but a minor move to put certain works under copyright is somehow violating contract law.

So, it appears that he thinks copyright should last forever... and he's against changing the "contract" on copyright related terms... unless the change screws over the public and completely tramples the existing agreement they had.

What else is against free market Capitalism?

"Hoffman: We don't take houses or cars back, but we take back copyrights. Why? "

First of all, the law often places time limitations on contracts, limitations that the contract itself can't change (ie: limitations on non-compete clauses, among various others).

Secondly, there is a difference between taking a car back and fulfilling a contract that says, at the end of the term, the works should go into the public domain. For one side to unilaterally extend that contract, through retroactive copyright extensions, violates the initial contract.

Thirdly, real property has laws that allow the government to seize it for the public benefit, like eminent domain laws. Copyright laws should serve the public interest and if 'seizing' copyrighted works and placing it in the public domain is in the public interest, then it should be done.

Re:

and don't forget abandoned property. if you leave property (cars, homes, cash, etc.) unattended for a certain amount of time, the government certainly can and does take it away from you. if it can contact you then fine. if not it keeps it. whole neighborhoods in detroit are be bulldozed in part because of this.

this is escheatment. and looking back at some of the posts today, it seems that these regulations may be exactly what we need to release abandoned ip back into the wild.

Re: Re:

"if you leave property (cars, homes, cash, etc.) unattended for a certain amount of time, the government certainly can and does take it away from you."

In copyright matters no one knows who owns a particular work. It is all a matter of contract law, with a side of everything created is copyrighted. This leads to the ambiguous situation where everyone can use the work and everyone is a criminal if they use the work.

Re:

Who is "we?" Is this moron against limited patent terms, too? Better for Big Pharma to own all rights to meds forever--no need to eventually make them affordable for humans. And that limited-term license I grant someone to use my song? That, I guess, should be extended in perpetuity as well, despite its stated-at-the-outset limits.

Copyright as a contract

So, it appears that he thinks copyright should last forever... and he's against changing the "contract" on copyright related terms... unless the change screws over the public and completely tramples the existing agreement they had.

Viewing copyright as a contract was the moment my understanding and opinion on copyrights shifted.

Copyrights were written into the Constitution as a contract, we give you a limited monopoly on something that cannot be naturally protected (expressions), as an incentive to create new expressions that will benefit everyone. However, the line itself mentions that it should be limited. Copyright takes the natural exhange of expression and ideas and tries to do something unnatural with it, treat it like a finite commodity, with the understanding that it will eventually be set free again.

Problem is that contract is out of whack. The contract is being increased in scope and duration without any consideration of how that will affect common interactions. The consequences of which is carried out in courtrooms with what seems to be increasing frequency.

Re: Re: Copyright as a contract

I agree with you, but piracy is only a symptom of the problem, not the cause. Tightening the laws further to make creative expressions progressively difficult for people who try to interact with copyrighted products is not the answer.

Re: Re: Copyright as a contract

I sail the high seas looking to plunder booty and I do not appreciate you calling those people pirates. They know nothing of my work. Most of them are fat lazy bastards eating cheetos in their mothers' basements because they don't have jobs.

Re: Re: Re: Copyright as a contract

Aye! Shiver me timbers! I'll stand you a mug of grog for that one matey! I be bettin' a pile o' plunder that these soft, yellow-bellied bootlickers and publicans never once ran a cutlass through a man's gut, brutally raped a pretty cabin boy or set fire to a whole town! Not one among 'em who could pick their teeth with a dagger or knock a man down with the stench of their unwashed privates. Not to mention my sincere doubts about any of 'em being in possession of a Letter of Marque!

Arrrr it's enough to make you blow the head off a random passing seagull with your Barbary Coast pistol!

Re: Re: Re: Copyright as a contract

I'm not sure I completely agree. IMO, I get that piracy is illegal, but my problem is that the proposed solutions to it have become increasingly oppressive, e.g. making digital infringment worthy of jail time.

Although I think that times and technology have changed enough to make IP laws useless, I could live with them if they seemed reasonable, and I'm willing to say that the current laws aren't.

Re: Re: Copyright as a contract

Re: Re: Copyright as a contract

So viewing it as a contract both sides should also be able to see and therefore apply such things as:
* Estoppel
* Consideration
* Capacity
* Forfeiture
* Illusory Consideration
* Uncertainty (with its full ability to sever)
* Unconscionable conduct and the Voidability of such

Should I go on?

Because I can guarantee one side is not beholden to any of these whatsoever, and for a hint, that side is not the side that what some illinformed and biased boffins classify as 'pirates'.

The crutch of blaming pirates...

You know, if you actually returned copyright law to it's original balanced state there would be a great deal of this "pirated" content that would no longer be "pirated" content any more because it would be in the public domain.

The law has been constantly altered to suit only one side of the bargain since long before the tech was there such that you could even claim that piracy is a problem.

Jamie Thomas was sued and subjected to an absurd "punishment" over works that either should rightfully be in the public domain or should be very soon.

Re: The crutch of blaming pirates...

You know, if you actually returned copyright law to it's original balanced state there would be a great deal of this "pirated" content that would no longer be "pirated" content any more because it would be in the public domain.

That would be the only way to reduce piracy substantially. And the only way the copyright industry people won't consider.

Re: Re: Copyright as a contract

Hollywood Should Be Afraid of Him

If he had his way, there would be no movies based on older stories, like the recent rendition of Alice In Wonderland and many other films. The descendants of the author, no matter how many generations removed could lock up the stories of someone deep in their family tree or demand insane licenses fees (after the movie is made of course).

There is very little that is completely original anymore. Every time a movie comes out there would be plenty of people claiming that someone in their family somewhere copyrighted the story first. The cost of the legal challenges alone would be prohibitive.

Not just movies, any expression that expects to make money can also expect to share its profits with all those who claim resemblances to work done by anyone in their family.

On the plus side, this will certainly cause a boost in genealogy research. :) Might be smart to get your family details now before demand increases the price.

Re: Hollywood Should Be Afraid of Him

Oh my word, can you imagine the headache of trying to get buy-in from every descendant of a creator if you wanted to use their work after a few generations? Having to find dozens of people and hope that not one of them decides they want to say no? Ugh, I'm gonna have nightmares tonight.

Re: LOOK at his Picture! (on his site)

"awards" == Spam

They all want you to display the award with a link back to their website, it's basically SEO spam. My website is total crap and I still keep getting offered these awards (although nowdays google just filters them straight into my spam folder)

Capitalism

Copyright lasts too long already. No reason for the record labels or publishing companies to continue to get royalties on works over 50 years old. That's money for nothing, stealing, not capitalism (although the line seems to be blurring thee days.)

Re: Re: Re: Re: Dire Straits

Re:

Copyright has to last long enough for the descendents of the creator to die off and hand the copyright over to a corporate lawyer. Why do you think lawyers created the law in the first place? It's all for their benefit.

Wonderful interpretation! if it's successful,it's free-market! If it's unsuccessful, it's Piracy! Copyright !=free-market, else Disney would never have gotten big. Also a big redminder for those playing at home - it's because of 'excessive' IP law back in the early 20th. C. that Hollywood even existed.

Mr. Hoffman is not speaking about the term of years a copyright should last, and saying otherwise, either directly or by implication, means someone has not done his/her homework.

Mr. Hoffman is speaking about the "federalization" of pre-1972 sound recordings and the application of 17 USC 203 to such recordings.

This has nothing to do with how long a copyright should last.

It has everything to do with allowing a party to a bi-lateral sound recording contract predating 1972 to terminate the contract unilaterally without any obligations owed to the other contracting party. In others words, "Yes, I know I sold you everything about 50 years ago, but now that the Feds are stepping in I am taking it back and don't owe you a dime!"

Re:

And don't get me started on the ridiculous suggestion that putting works into the public domain is "contrary to free market capitalism." Which sounds more like free market capitalism: a world in which there is no government monopolies and interference for people to create and build... or one in which there's a central authority granting monopolies and changing those terms at will?

Of course it's contrary to "free market capitalism", unless you mean by it the kind of capitalism that exists in Somalia, - the one without law enforcement and central authority. That tortuous sorry excuse of logic to somehow prove that restrictive and abusive copyright enforcement is not an inherent feature of capitalism, is what gives Masnick's posts such an air of hypocrisy. That pious fake continues to prattle about mythical "new business models" that somehow would make abundant free content of good quality to appear magically. Remind me, did Mike Masnick call himself "neither left nor right"? People like him always do.

Re:

That tortuous sorry excuse of logic to somehow prove that restrictive and abusive copyright enforcement is not an inherent feature of capitalism, is what gives Masnick's posts such an air of hypocrisy.

Please tell me I misunderstood this, because it sounds like you're saying that restrictive and abusive copyright enforcement is an inherent feature of capitalism. Just... tell me that isn't what you meant so my head doesn't explode. I like my head.

Re: Re:

Restrictive and abusive copyright enforcement is an inherent feature of capitalism. I know it comes as a shock to brainwashed amerikans, but try to read something on the actual history of capitalism, rather than sanitized propaganda accounts

This lawyer is a lawyer, not a capitalist. The free market has no problem with copyrights having limited expiration. Copyright is a convenience and simply eliminates the need for EULAs on books, music and video.

The market can use contracts if there is no copyright.

I'm a pure capitalist and I say a reasonable copyright period is ok-say 20 years and no possibility of renewal. Whatever the term, nothing in capitalism needs eternal copyrights!

"Intellectual Property" is fraud

The concept of "Intellectual Property" is fraud. It requires a gun pointed at everyone's heads by a power-elite thuggocracy, aka government. Government is simply the biggest gang of highwaymen, burglars, and pirates that lays claim to a territory. It must employ illusions and falsehoods such as "patriotism" and "law" (re: political law, as opposed to Natural Law) to masque its rotting, maggot-infested face from the masses, who would be horrified at the truth should they ever develop the intellectual faculties to perceive it. The irony of violent, criminal gang members declaring innocent bystanders to be the "pirates" and "outlaws" should not be lost in this context.

The story of history is one of technological advancement that trends society toward peaceful production and away from violent predation. We can see today that technology has enabled the fraud that is Intellectual Property to be put in its proper place - the dustbin of history. We will see tomorrow that technology will enable the fraud that is government to be put in its proper place, as well.

Indeed, it's only a matter of time, and the power-elite can sense their doom fast approaching. The Internet is necessary, but not sufficient, for a global awakening. The true awakening of the masses will come when genetic and cybernetic intelligence enhancement technology becomes available. This is why the power-elite feel the pressing need to accelerate their plans for one world government, which inclines them toward making even more sloppy mistakes than usual.

The copyright laws as they stand now are just plain crazy. Just like news, music gets "old". Granted, some news may always be interesting and some music always "good" but it shouldn't have to be paid for over and over and over eternally and forevermore. Nothing in this world is worth that just like "nothing is new under the sun".

Speaking at USCO's Pre-1972 Sound Recording Hearings

Mike:

A quick response specifically to this:

"What did Hoffman have to say? Well, there were two separate points that seemed worth covering, which I've embedded below via Copycense's tweets, and assuming that Copycense's reporting is accurate (and I have no reason to believe otherwise), it makes you wonder why the Copyright Office would have someone like him speak at their hearings."

The Copyright Office did not specifically solicit Hoffman's input, or the input of any other party for that matter. The Office sent out a Federal Register notice in May [http://www.copyright.gov/fedreg/2011/76fr26769.pdf] asking interested parties to sign up to speak. Hoffman was among those who signed up to speak in order to represent his clients' position at the hearing. While the Copyright Office's hearing room is relatively small (holds about 70 people with furniture), I did not hear of the Office rejecting any person who requested to speak at any of the sessions.

Full disclosure: While I live-tweeted the session as Copycense's executive editor, I attended representing Syracuse University's interests. I submitted the University's testimony in January, but did not speak at any of the sessions.

Re: Speaking at USCO's Pre-1972 Sound Recording Hearings

Re: Speaking at USCO's Pre-1972 Sound Recording Hearings

You have correctly noted that those who spoke before at the meeting did so at their request, and not because they had personally been invited to speak.

What has not been clarified, however, is the substance of Mr. Hoffman's comments and the context in which they were made.

You mention having made a submittal in January in response to the Fed. Reg. RFI by the Copyright Office. Your response is of record. However, Mr. Hoffman did likewise in early February, and it is abundantly clear from his response that the tweets create an impression that is 180 out from his concerns. Certainly, his concerns are legitimate. Contracts executed many, many years ago should not be modified to insert a term by operation of a federal statute that was clearly not within the contemplation of the parties when the contracts were executed. If ever there was issue ripe for a takings claim under the 5th Amendment, this is it.

Re: Re: Speaking at USCO's Pre-1972 Sound Recording Hearings

You mention having made a submittal in January in response to the Fed. Reg. RFI by the Copyright Office. Your response is of record. However, Mr. Hoffman did likewise in early February, and it is abundantly clear from his response that the tweets create an impression that is 180 out from his concerns. Certainly, his concerns are legitimate. Contracts executed many, many years ago should not be modified to insert a term by operation of a federal statute that was clearly not within the contemplation of the parties when the contracts were executed. If ever there was issue ripe for a takings claim under the 5th Amendment, this is it.

Re: Re: Re: Speaking at USCO's Pre-1972 Sound Recording Hearings

My comments have absolutely nothing to do with the extension of copyrights terms several years ago under the Sony (Where did this tree come from?) Bony Copyright Extension Act.

And, yes, I believe the extension of copyright terms, particularly when the US acceded to the European norm contained in the Berne Convention provisions, was unwise as it cast aside principles of law that had guided US Copyright Law that had existed since the enactment of the Copyright Act of 1790.

Re: Re: Speaking at USCO's Pre-1972 Sound Recording Hearings

To Anonymous Coward:

I'm a bit unclear about this. It seems you're suggesting that my coverage is inconsistent with Mr. Hoffman's public testimony. I did not read Mr. Hoffman's testimony prior to covering the hearing, so I don't know whether or not the statements I summarized and attributed to him in my Twitter coverage are inconsistent with what he submitted to the Copyright Office in response to the Office's RFC.

I can tell you Mr. Hoffman appeared only at one session. He made his statement, indicated he would have to leave the session before its conclusion,and did, in fact, leave the session prior to its conclusion. Mike Masnick did ask me on Twitter during the hearing whether Mr. Hoffman seemed serious in his statements. I responded I thought he was quite serious, since I was sitting nearby in the Office's relatively small hearing room.

I don't have any immediate input about the possible takings issue, other than to say that it was discussed. Mr. Hoffman was the one of the few -- actually, I believe the only one -- who raised and extensively reviewed the possibility that federalizing pre-1972 sound recordings law could impact contractual terms, thereby leading to a takings issue.

An official from the Copyright Office said the agency will post a hearing transcript later this month. While I'm confident my coverage captured the highlights and gist of the hearings, that transcript will and should be the hearing's definitive record.

Re: Re: Re: Speaking at USCO's Pre-1972 Sound Recording Hearings

Thank you for your very kind reply.

I do not have immediately at hand a cite to Mr. Hoffman's written submittal made in February, but I did read it and clearly he was directing his comments to matters of contract that would necessarily be impacted should "federalization" transpire.

Like him, I do believe that there is the real possibility of a 5th Amendment issue arising should "termination transfer" be applied to such contracts.

Sadly, many seem prone to believe that his comments were tantamount to advocating "perpetual" copyright, even though this was certainly not the case. His concern was directed to only one issue, namely, after the fact federal modification of long ago executed bilateral contracts.

He raised a fair and valid point, one that would obviously have to be taken into account. Otherwise, see: Article 1, Section 9 prohibition against ex post facto laws.

Oh, and here's a howler:

"Keep in mind that in the business of intellectual property rights, which is the business you are in no matter what your product or service, quality legal services are the absolute foundation of your business."